New as-applied 2A case

Posted by David Hardy · 30 April 2018 09:15 AM

Eugene Volokh discusses it here. In the Second Amendment context, an as-applied challenge involves challenging a broad prohibition that is permissible as a category (in this case, a bar on gun possession by convicted felons) but may be a 2A violation as applied to this case (a nonviolent felony conviction that is 28 years old).

The question is whether Heller allows for such challenges. A few courts have said no -- Heller says that bars to felon possession are presumptively lawful, so felons should be treated as having no Second Amendment rights at all. More courts have said yes -- Heller says the general ban is "presumptively" lawful, and a person can rebut that presumption with evidence that the conviction is very old and they have been a law-abiding person since.

(Actually this raises a deeper question. When the Heller majority says such bans are "presumptively" lawful, does it mean (1) the bans are legally presumed to be permissible (whether the presumption can be rebutted or not), so that if one is challenged we never get to the question of what standard of review applies and whether the justification is there, or (2) under the ordinary standards of review, the Court presumes that bans like this will pass muster? Essentially, when such a ban is challenged, do we go to standard of review and judge whether the law's necessity justifies the infringement, or do we cut everything off before reaching that stage?

Although difficult and expensive, a felon's civil rights can be restored, and the ATF has nothing to to with it. Personally I think it's ridiculous to prohibit felons from owning arms. Just as with regular citizens, the felons who shouldn't have a gun will get one anyway, and the rest are being deprived of a basic right. Either they have "paid their debt" to society, or they have not. Funny thing about "rights", either we ALL have them, or soon enough NO ONE will have them.